Gay panic lite

The Matthew Shepard murder trial goes to the jury after the defense offers a modified version of its disallowed strategy.

Published November 2, 1999 11:30AM (EST)

Aaron McKinney's lawyer sent his murder trial to the jury Tuesday morning with a gay panic lite defense, arguing that a sexual advance by Matthew Shepard triggered McKinney's murderous rage, which was aggravated by his drug abuse.

Two sentences from lead defense attorney Dion Custis neatly summarized his defense: "It started because Matthew Shepard grabbed his balls. It continued because Aaron McKinney was a chronic meth user."

The jury began deliberations just before noon, with betting around the courtroom predicting a murder-one verdict near nightfall. Laramie juries often deliberate late into the evening when they are close to a verdict.

McKinney, 22, is charged with first-degree murder, aggravated robbery and kidnapping in the October 1998 bludgeoning of the 21-year-old gay college student. Shepard was found tied to a fence, and died five days later of wounds to his face and head. The defense is fighting for a reduced conviction of second-degree murder or manslaughter to escape the death penalty

Judge Barton Voigt ruled against the controversial "homosexual rage" defense Monday, forbidding testimony on McKinney's homosexual history. In response Tuesday, Custis continued to characterize the attack as a spontaneous rage brought on by Shepard's alleged sexual advance in the truck, but dramatically toned down the rhetoric.

Voigt did not follow through on a threat to rule out the manslaughter option altogether. "The Court is not yet convinced that a manslaughter instruction will even be given in this case," he wrote in Monday's decision letter barring the gay panic defense. "Such an instruction is not appropriate in a case that turns out to be 'a premeditated gaybashing or robbery poorly disguised as' homosexual rage." But he read the instruction Tuesday.

Both sides agreed that McKinney committed the murder, with Custis actually using that legal term in his closing argument. The points of contention boiled down to whether the act was premeditated or the result of extreme intoxication.

Prosecutor Cal Rerucha alluded to testimony that McKinney was actually sober at the time of the killing, and focused on his final request for Shepard to read McKinney's license plate as the most damning proof of premeditation -- allegedly proving that McKinney intentionally killed Shepard to make sure he could never be a witness in a case against him.

Custis, by contrast, repeatedly referred to his client by his nickname, "Dopey," and argued that McKinney was too unsophisticated to plan the ruse advanced by the prosecution. "He's not that bright," Custis finally said. McKinney began to tear up at that point.

In striking contrast to his opening statement, which laid out the entire incident as a robbery gone bad, Rerucha finally accused McKinney of bludgeoning Shepard because of his homosexuality. "Mr. Shepard is someone who can be punished," he said. "Mr. Shepard is not a human being."

The defense raised its only objection at that point, and Rerucha rephrased: "Read Mr. McKinney's statement. He talks about queers and fags. Matthew Shepard was not an animal on a fence. Matthew Shepard was a human being."

If McKinney is convicted on any of the three first-degree murder counts, the trial will proceed immediately to the sentencing phase, likely to last two to three days. The prosecutor would present evidence of aggravating factors, such as robbery and kidnapping, while the defense would offer mitigating factors, such as character and homosexual history. At least one aggravating factor is required to apply the death penalty, but legal analysts say a death sentence is almost unachievable in liberal Albany County.

If the jury convicts on the lesser counts, Judge Voigt would decide the sentence, with a possibility of the defense waiving the sentencing hearing, as co-defendant Russell Henderson did last spring. Henderson is serving two consecutive life sentences without possibility of parole after a plea bargain last spring.

By Dave Cullen

Dave Cullen is a Denver writer working on a memoir, "In a Boy's Dream."

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